The Body Corporate of the Phoenician Cts 27745 v Mantra IP Pty Ltd

The Body Corporate of the Phoenician Cts 27745 (the Body Corporate) opposed the registration of three trade mark applications filed by Mantra IP Pty Ltd (Mantra IP). The dispute concerned the use of the trade mark "PHOENICIAN" in relation to accommodation and related services. The Body Corporate argued that it had prior rights and that Mantra IP lacked the intention to use the trade marks. The matter was heard by Bianca Irgang, a Hearing Officer for Trade Marks.

The legal issues before the Hearing Officer included whether the Body Corporate had established grounds for opposition under sections 44, 58, 59, 60, and 62A of the relevant Act. Specifically, the Hearing Officer had to determine if Mantra IP's trade mark applications were substantially identical or deceptively similar to earlier trade marks owned by the Body Corporate, if Mantra IP intended to use the trade marks in Australia, and if the applications were filed in bad faith. The Hearing Officer also considered the evidence provided by both parties in support of their respective arguments.

The Hearing Officer found that the Body Corporate had not established its opposition under section 44 because it failed to provide evidence of a trade mark with an earlier priority date. Regarding section 59, the Hearing Officer applied the precedent set in *Food Channel Network Pty Ltd v Television Food Network GP*, holding that the intention to use a trade mark is determined at the date of filing, and that use or non-use after that date could be relevant in inferring intention. The evidence did not support the Body Corporate's hypothesis regarding Mantra IP's intentions or suggest bad faith under section 62A. However, the Hearing Officer found that Mantra IP had established the ground of opposition under section 58 in relation to trade mark application number 1272905.

Consequently, the Hearing Officer ordered that trade mark applications 1228732 and 1228735 be registered, subject to any appeal proceedings. Conversely, the Hearing Officer refused the registration of trade mark application number 1272905. Mantra IP was awarded costs, with the quantum of costs for each application determined based on the extent to which the evidence for one matter constituted evidence for another.